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Borden 3, Us 3, Mr. Wyco 2, Mr. Rodgers 1, Wiener 1, Antonini 1, Wu 1, Amy Rodgers 1, Elaine Warren 1, Ms. Rodgers 1, Ann Marie 1, Bifurcating 1, Mta 1, Recertify 1, Cetera 1, Sugaya 1, State C-e-q-a Law 1, Ms. Hester 1,
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  SFGTV    [untitled]  

    December 4, 2012
    6:30 - 7:00am PST  

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c-e-q-a saved houses or properties, et cetera, no one is looking to change that. i think i know that we're all looking for making the process work better for everyone involved and to be more transparent. and, so, i would just say also with staff in looking at the appellate process, how that can be outlined better on our website if people could apply, hit a button to appeal something on the website. i think, yes, people should have to provide more information up front as to what some of their arguments are. but, you know, i think it is a little bit onerous what the scheduling deadlines to have people provide some of the level of detail we're asking for at this point. >> if i could speak to a couple things just to clarify. the five acre provision only applies to plans. and, again, that's basically a policy call for whoever wants to make recommendations here. that was in all the versions of the last legislation including all the permutations that happened after it went through the planning commission and is basically a trade-off, is
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saying that every single parcel gets notice knowing that notice when most of those parcels are occupied by renters and most of that mail gets returned as undelivered, is that a superior notice? then sending notice to everybody who participated in the planning process for a number of years, and that includes renters, includes whoever had any participation, left any kind of way of being contacted, you know, that's the trade-off there. which is more effective notice. >> i would just say if you're going to choose a notice of acceptance, you would look at maybe if the property owner's property would actually be rezoned, right? if i'm in a residential district rh1 or whatever and my property is not going to be rezoned anything different, maybe this is more general notice i would get. if i'm in a property where i'm going to become legal nonconforming or property is being up zoned or down zoned, that's more my concern. so, how do we -- i'm not saying
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-- that should be fairly easy to separate out. i just think notice in terms of how it affects people directly and how you inform them would be -- >> i guess just two other points, the main points you made. in terms of this first discretionary action, someone who plays games, hides the ball does it at their own peril. if they don't give us the project in its entirety, they are going to be recycling through the process. and if somehow they slip through the cracks of the process, they are going to lose in court because they're doing piece metionv of the project and they're not giving us the entire of the project. piecemealing. * [speaker not understood], in this is where i agree with a number of the speakers, this city doesn't have the authority to change the legal standard review. >> and i'm not arguing about that, no. i wasn't arguing about that. in terms of discretionary action, if that's going to stay in the legislation, i would
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prefer that discretionary's planning or building department action because i think that those are the areas where the notice happens, building permits or planning permits. >> commissioner antonini. >> thank you, mr. wyco. you might as well come back up again. sorry. i have a question. my questions revolve mostly around situations that commissioner borden was dealing with, and these are permits. someone gets a permit to make changes to their house or some sort of thing that's over the counter and they don't need to go through process. but there is an environmental cad ex to this as there is to almost anything. and i guess right now i'm hearing there is no limit or a six-month statutory limit to an appeal of a cad ex on this type of project. what is the number on that? >> there is no requirement for notice under state law. there are a number of notice provisions that are in existing article and there are
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supplemental notices like posting on website that we do now. but basically whether you get that notice or whether you don't, you need to exercise your rights within six months. that's how c-e-q-a is structured. >> well, this i think is something that supervisor is trying to deal with and it's a little unrealistic. and it happens, i've heard of many instances where projects are approved. the project sponsor begins, has the contractor, is almost starting to do work sometimes. and, you know, during that period of time all of a sudden an appeal pops up and it has to be heard and nothing can be done any further until the appeal is done. i think that that window is too long. perhaps 20 days is too short. but i mean, i think that, you know, there is some appeal in the range of a month or something like that would be a realistic one in my mind that, you know, and also increasing noticing as you've spoken
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about, making notice as more universal as possible without necessarily sending to all the property owners, but on the web. also some sort of public notice in a very visible place, not in the fine print in the examiner, but someplace that would be easily noticed by people that would be looking for things that may be happening in their -- or on the planning commission now has e-mail, websites and things that we might make available to the public in that way. those are the kind of things i'm thinking about. so, thank you. i have a few other comments. the other thing, i think this is good legislation. i think it needs a little fine tuning, but a lot of the comments we had dealt with, things that are not part of the legislation. ms. rodgers, correct me if i'm wrong, but i have been hearing from staff and hearing from everyone that nobody is abridging the rights of the
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public to the appeal process that exists now particularly in regards to the projects we most normally see here which involve our decisions and almost always involve, sometimes they're cad x's, but almost always negative declarations or e-i-rs. and the same process will be followed with a couple of modifications i believe that he did say where there is a board appeal of a c-e-q-a issue, and they're already having to take action in a mandatory way. they will couple the appeal with their action, which is efficient and just makes sense to me. it doesn't mean and the c-e-q-a appeal -- that would have to be heard first before the approval of the project, i would expect, just like we -- in order -- we cannot approve a project if we have not first approved the c-e-q-a part of it. re: good evening again, amy
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rodgers, planning staff. that is correct. it would be done similar to how the board has chosen to do things in the last year or so where they have actually called the two items, although they're listed separately project approval c-e-q-a appeal. * they call the projects together, combine public comment, combine staff presentations so it is covering the c-u appeal, he the c-e-q-a appeal, everything all at once. it would be similar. it would be one combined hearing, one opportunity for everybody. >> yeah, well, that makes sense to me rather than bifurcating it. oftentimes our hearings end up being that way, too. we may have separate comments, but almost always we have our environmental piece and the c-u or whatever the 309 is on the same day because we would rather get it done because oftentimes there have been cases where if it goes to the next day appeal is then filed and it means we're delayed
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months and months to move forward with the approval process. so, i think that generally there have been a lot of things that were voiced tonight, but i don't think a lot of them really deal with what's before us. there was this whole issue of substantial evidence and fair argument and that is part of state law if i'm not mistaken. that can't be changed. we're not saying it's going to be different. that isn't part of the legislation. that has nothing to do with it. a few other points that i noted where we went through this entire process is i was on the commission long enough to be part of it before the state law came into effect on january 1st, 2003 that made the elected body of a particular county of the appellate body, there was a flood of appeals that happened after that. i think one of the speakers hit the nail on the head. on many of these projects, the appeals have nothing really to
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do with the environmental piece. they're using the piece because it's an attractive way to appeal. because, as you know, if an appeal is accepted by the board of supervisors, it only needs a simple majority. if they're going to override our approval of a project, then they need a super majority to do so on a c-u or 309. so, it's the lower hanging fruit and that's not part of this legislation, but i'd like to see it examined if every county has to actually have that kind of a bar. and if we could make it a super majority, you'd probably see a lot fewer c-e-q-a appeals. but that's something that we'd have to look at in state c-e-q-a law. but, you know, and it's much more devastating when a huge e-i-r has been filed. it's always a mystery to me during my time on the commission, first couple of years, why are these people challenging the e-i-r? there is a huge document. it's very comprehensive. it's accurate. it's adequate. it's complete. and they're picking little
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parts of it. because that's where they want to be able to start the project as opposed to having to vote on the project itself. many times as one speaker pointed out, there are corollary issues that are behind the appeal rather than just environmental things. that's not what's before us today. but i think supervisor wiener has dealt more with technical process problems and i think he's identified a lot of them here. and you know, my only concerns would be with the two things were brought up by supervisor borden, would be there should be an appeal period of time and it should be a definite appeal period whether it's 30 days, you know. i don't think it should be too much more than that. but i think there has to be really firm moves towards as much notice as possible that the public can -- who is paying attention can be expected to
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see. and they should make that appeal in a timely manner rather than things going on. and there have been situations where it seems to have dragged on for years, although i hear there's a statutory six months period of time. but sometimes there have been some multiple appeals because they appeal it. * at the planning commission and then at the beale and the board of supervisors. there's nothing we can stop. i'd like to hear what the other commissioners have to say. i think there is a lot of potential and it should be moved forward with those admonitions we have spoken about. >> commissioner wu. >> thank you. so, on a couple topics that we've already talked about, i think that there definitely was a lack of process. i think this is something the department struggles with on all legislation. i know that it's a very tall order to hold community meetings on every piece of legislation, especially as the board of supervisors is suggesting more and more legislation these days.
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but i also feel like we wouldn't have had this reaction if there were some more outreach. i would encourage all of the supervisor offices to think about that a little bit more. on the question of setting a time frame for appeals and emotionses on the negative declarations, i do feel like that sets a process up more clear. i think that 30 days is probably more reasonable for the case in which there was notice, but i think in the case in which there wasn't notice it should revert back to i can i think it was either six months or whatever it is currently. * if there is no notice, we are in a situation where people don't know they have to appeal. i wanted to ask some clarifying questions mr. rodgers, if i could ask on the board of supervisors as the c-e-q-a sort of decider, if the legislation were to go through, does it mean the decision would go through the land use committee
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and no public hearing at the full board? and is that different than today? >> if the board needs to hear the entitlement, they typically hear planning entitlements at the land use committee. it is not an approval but a recommendation. a recommendation for approval. and it typically goes to the full board. in this case and also as the board procedures there's no public comment typically at the full board, but for appeals. so, if this were to go through, i believe what would typically happen would be the board could have a decision that they could make -- take all the public comment for the public at the committee level or the board sits as a committee as a whole at the full board. so, they could also choose to -- the committee could not hear it at all and the full board could hear its sitting as a committee.
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the full board as a whole [speaker not understood]. >> thank you. i think that is an important distinction and disdifference to what it is today and what it might be in the future. it is not for us to decide, i think it is for the board to decide. i just wanted to highlight that. and then i have another set of questions on standing, which is new to me so you have to bear with me. so, it seems like today any person can appeal either an exemption or a neglect derek deck. but what is proposed for the future is for the exemption, it's any person who has objected to the exemption. * negative declaration and it's not clear to me where in the process you object in the first place. and then for the negative declaration, it's any person who appealed -- well, maybe i should ask for your clarification. >> bill wyco again. c-e-q-a and i think environmental laws in general i think have the broadest standing provisions of any laws in the country in the state.
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you generally have standing irrespective of being affected. i know the appeal letter always say [speaker not understood] i represent x thousand people. in reality you can represent yourself and you have standing. you don't have to be next door to them. you just have to raise an objection. in terms of the procedural things that are spelled out here, they are consistent with what c-e-q-a establishes normal due process in the united states establishes, if you want to exercise rights. you have kind of -- you need to exercise your rights and if you don't raise an objection, you know, there's kind of a process of winnowing, if you will. this is maybe something the city attorney could address better than me. essentially you have -- standing really isn't the issue. standing is if you don't raise an objection, you don't get to show up at the last hour and say, i appeal, because -- this is again, not particularly an
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exemption situation. it is the last hour -- it's the first hour. but in the case of an e-i-r, if you haven't commented, then you don't get to appeal. >> right. it's clear to me what it is on an e-i-r. if you could give an example what it would mean on a categorical exemption. >> making a categorical exemption it doesn't apply because, again, the first -- the last hour and the first hour, are identical. >> that was my question. and on a negative declaration, what would that mean? >> depends on whether you leave it the way it is now, which ah extensively says, we publish a document on the face of a document. if you wish to raise concerns or wish to appeal, contact the affected planner within 20 days, 30 days if there is state agency involved. and if there is an appeal, then it's calendared here and you hear it and then there is potential to subsequently appeal to the board. however, if someone chooses not
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to take what this says, which is you have 20 days to appeal and to take it to the planning commission, they can just ignore that and then wait until there is a entitlement action or permitting action and take it to the board directly. so, under this legislation it would be that you would have to take it to the commission first and then there would be a triggering action associated with the appeal. the permit that would then go to the board. >> okay, thank you. >> commissioner sugaya. >> thanks. i have a bunch of disjointed comments here. first of all, i'd like to thank ann marie for responding to some questions that i had with respect to the table we have here -- i asked you first. i know we're going to get additional information with respect to this in terms of
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some more timelines is what i'm looking for. i also like to thank staff for providing some responses to all of the letters, the fine questions that were previously submitted and it's also in the matrix in our documents. that said, i think in just quickly looking over the number of why i asked ann marie how many exemptions, e-i-rs, negative declarations have been processed by the department within the last three, five, eight years or whatever, and left it up to them to pick the number of years. they chose three. i don't have the total number to compare this to, but in 2010 there were 16 appeals, 2011 18 appeals, and 15 appeals so far this year, which is -- we still have the month of december to go. of that, in 2010 six e-i-rs
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were appealed. in 2011 there were 7. and this year there are 6. and there were 10 exemptions three years ago, 9 exemptions and 9 exemptions this year. that is in context of what various people have said of thousands of exemptionses and e-i-rs of the process every year. i don't know if thousand is a correct number. it sounds high to me. but maybe if they're processing requests from the building department, from rec and park, other departments, mta, et cetera, i guess conceivably it could be that high. it just seems like if the argument forsee qua reform is based on some kind of abuse and some kind of huge problem at the board of supervisors, these number don't seem to bear that out. that the process seem to be
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working in the majority of times despite the fact that we have issues with negative declaration and exemption notificationses and that kind of thing. and, so, i don't see an issue with trying to attack and clarify is and make more clear to the public what the process with neglect dick and exemptions. i'm perfectly fine with that. i think it's in the details a lot of us have questions about and are completely clear about. * negative declaration i do support that move. and i think the other aspect of it is ms. hester said that if the supervisor would open it up a little bit, there may be other areas of c-e-q-a reform that we could be looking at that he hasn't thought of or haven't been brought forth by the people he's been talking to. and ms. hester might have additional in the neighborhood organizations might have
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additional c-e-q-a reform ideas that could be incorporated into this process. i do have a question with respect -- well, back to the original question that supervisor borden started with or other commissioners have mentioned. in terms of the process of automatically going to the board of supervisors on issues like zoning or whatever that they also have jurisdiction over , isn't the wording in the legislation such that it says the board of supervisors will be the final certification body? i didn't quite understand that language. because if we're now saying that the -- that this commission certifies the e-i-r, then how can the board of supervisors certify the e-i-r? >> bill wyco again.
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there's was one commenter -- actually, it should be the board. that's not what the legislation says. the legislation says that if there is an appeal of the c-e-q-a action to the board, then they have to be either affirmed, recertify, if you will, that's not technically legally what it is. but the matter is before them in their consideration. so, it's only in the case of a c-e-q-a appeal that they are acting to certify. in the case of something that isn't appealed but is a legislative action by the board, like any body that uses a c-e-q-a document, they have to adopt the c-e-q-a document, the findings, the mitigation measures, whatever else applies. so, that's really unchanged as we discussed earlier, this whole concept. >> but there is a way the legislation is presented at least the way i've understood it, is there is no appeal to the board of supervisors on a certification. it just automatically goes to them. isn't that correct?
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>> elaine warren, deputy city attorney. you're referring to actions where the board has to act to approve the projerk anyway. >> yes. >> and the way the ordinance is written, in those cases as bill explained earlier, the c-e-q-a process -- let's say there is an e-i-r that requires certification. * project the process would be the same as it is now at the planning commission. you would certify the c-e-q-a document before it could get to the board. assuming you would certify the document. when it gets to the board, the board would be required before it approves the project, to affirm that certification, which is exactly what it does when it hears an appeal. it gives it -- it affirms the action taken by this body. so, i think as supervisor wiener explained, it's essentially an automatic appeal. so, if they have to approve the project, it would go to them.
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the c-e-q-a issue would go to them along with the -- whatever the approval action related to the project that they're being asked to take, they would consider them together through their normal processes ann marie explained. and before they approve the project, if they decide to approve the project, they would have to affirm the c-e-q-a decision that was made by the planning commission. >> but doesn't that -- i don't know what the state law says. but other people have claimed that that skirts the state law because the state law says a certification can be appealed to the legislative body. >> only if it's not -- if they're not the final decision making body on the c-e-q-a document. so, in this case they would be required to be the final decision making body. the fact that the planning commission would have done all the hard work getting through the document, getting the record all put together, making sure that it's in good shape before it gets to them doesn't
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mean that the board isn't the final decision making body. >> in those instances, wouldn't it be just easier for the board just to be the certifying body and to bypass the commission all together? >> i think they appreciate the work that you do here. >> well, i'm saying it just seems like -- then you're forcing the people who may be in the current system thinking of filing an appeal on a certification to then -- the process just changes to where instead of filing an actual appeal, they would prepare the same kind of document, let's say, for themselves as an appeal, but then they would present that at the board of supervisors hearing. >> yes, they would not be precluded from doing that, yes. >> okay.
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on the triggering actions, i think there's been lots of discussions about what that is. and i think there needs to be a lot more discussion about specifically saying what that is at various departmental levels because nobody understands what that means. for example, if i go in -- the firm i work with is working with a property owner and we go in for a site permit, is that the triggering action for a building permit? because it's been issued. and i think it goes to planning and whatever and there's back and forth. i don't know, mr. wyco, if you're familiar with that part of the building department. >> i'm not the person in terms of policy intricacies of the building department [speaker not understood]. my understanding is the site permit could be the triggering action. >> the issue i have with that is you don't have to provide a lot of information about the actual building itself when you're going in for a site
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permit. it's conceptual. >> the environmental document, whatever it is, doesn't cover it, you just invited yourself back into a recycling process. >> you see, my problem with that is that it's not going to work. i mean, we have had -- and i don't want to get into dirty laundry here, but i'll get into it. staff is not reliable, okay. i'll just say it flat out. staff is not reliable. staff does not know what is going on, especially in the building department. , and you know, i'm going to get quoted on this and have to apologize so somebody. but, you know, i have some firsthand knowledge of projects that have gone through a certain approval processes, gets there, and the whole thing falls apart. and, so, i think that shortening it to 20 days isn't going to work.
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especially since i think there was some examples given trying to obtain documents. it takes us two to three weeks to get building request records answered. you're shot your entire 20 day period for appeal. you don't have the basic information on which to base your appeal in the first place. so, especially if you want -- and i understand substantial evidence. i think the issue with that is if you guys would -- if the supervisor would just take what it says in the state law as substantial evidence having to back up the fair argument and leave the fair argument in there, then i think it would be much clearer to the public. the public when they read this in the ordinance or however it's going to be put forth is going to see substantial evidence and they're going to go, oh, well, you know, that means lawyers. that means this and that, whatever.
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when, in fact, substantial evidence doesn't necessarily mean that you have to have what most people -- in reading substantial evidence would conjure up as what they need to provide. it is a very low threshold. even if you use the word substantial evidence, it's a very low threshold. and that's i think the problem that people are having by excluding the fair argument phrase in conjunction with substantial evidence. so, that's something i think the supervisor needs to take a look at and maybe use the way the state law is written to address both those phrases. in terms of -- i don't have much more. i think that -- i don't know what the commission wants to do.